Achieving Unity in the Interpretation of Federal Private Law:
Legal Framework and Fragments of Judicial Discourse

I. Interpretation of Federal Legislation in the Absence of Formal Unity of Federal Private Law

A. Absence of Unity: Interaction Between Federal Legislation and Provincial Private Law

2. Suppletive Function of Provincial Law

In the absence of an exhaustive set of private law rules under the specific jurisdiction of Canada, there will therefore be cases where a provision of federal legislation is uncertain or incomplete in respect of a private law question or questions. In those cases, as we explained earlier, the interrelated nature of private law legislative powers established by the Constitution allows for the application of provincial norms; those norms then, in a way, fill the gaps left by the federal legislation. However, the question arises of the basis on which those norms, which are within provincial authority, will apply in the federal legal system, and how they will apply. Under heading (a), we will first examine the legal basis of the norms that supplement federal legislation, as suppletive law, primarily to determine whether they may be considered to be part of a federal common law, properly so called. Under heading (b), we will then consider how those norms apply, to clarify what is meant by "complementarity" in a situation where reference is made to provincial law in the federal legal system. Only after examining these two aspects and thus determining the importance of the provincial rules as reflections of either the civil law or common law legal traditions, will we have identified the plural nature of federal private law.

(a) Absence of Federal Common Law

In order to determine the legal basis of the norms to be used to supplement federal legislation, as suppletive law, it should be reminded that the Constitution Act, 1867 did not result in the reception of the colonial legal systems at the federal level, and also that the authority granted to the Parliament of Canada by that Act, under the various exceptional private law powers listed in Section 91, is essentially legislative in nature. We pointed this out earlier when we noted that in technical terms, the pre-Confederation private law norms that had been continued in the provinces applied in areas under federal jurisdiction after Confederation, as long as the Parliament of Canada had not enacted its own legislation.[104] When such measures were adopted, to make federal private law rules uniform in relation to certain specific subjects that are under the authority of the Parliament of Canada (for example, bankruptcy and bills of exchange), the pre-Confederation law that applied in the provinces was thus gradually replaced by formal federal sources. In most cases, those substituted measures were adopted in relation to commercial law, and they were strongly influenced by English law, in terms of their formulation.[105] However, Parliament has also exercised its legislative powers in other private law areas, such as marriage, and occasionally somewhat late in the day.[106]

Notwithstanding sections 91, 92, 94 and 129 of the Constitution Act, 1867, which, in our opinion, when read together, formally establish the division of the formal sources of private law in the Canadian federation, it could be argued as an hypothesis that the provincial private law rules were indirectly incorporated into the federal legal system without being enacted by the Parliament of Canada. As a supplemental hypothesis, it could also be said that the federal legal system contains normative private law resources that do not come from provincial law, and provide a sort of backdrop to federal legislation, in a cultural rather than formal sense. While they are different from what we have understood to be the sources of federal private law to this point, that understanding being based on history and the Constitution, these two hypotheses nonetheless merit consideration. If we assume that there is a body of general private law that is attached to or belongs to the federal legal system, indirectly or in the abstract, those hypotheses make it possible to identify other possible bases for suppletive sources from which federal legislation could be supplemented. They would also make it possible to determine whether we can consider the possibility of a federal common law, properly speaking.

A brief comment is needed first regarding the concept of "common law", which this part of our analysis ultimately tends to focus on. It is this concept that is best able to provide a relatively unified representation of the suppletive law that could supplement federal legislation and thus provide a foundation stone.[107] Although the concept is not without ambiguity,[108] it essentially conveys the idea of a set of norms whose relative coherency is achieved, for example, by tradition, or what is the most tangible expression, a codification.[109] On this point, we may refer to the definition suggested by the late Professor John Brierley, which is both general and functional:

[TRANSLATION] At bottom, however, and taking a broad view of the question, it seems that we could nonetheless identify a certain unity in the conception of what constitutes the common law, even in a mixed, federal legal system. The concept of the common law is no more nor less than the expression of an idea: a particular body of norms applies unless there is express provision to the contrary.[110]

In this sense, while it is possible to imagine a plurality of common laws in a "mixed, federal legal system", that is, in this instance, the coexistence of bodies of provincial private law within the Canadian federation, it should nonetheless be noted that the concept itself is meant to imply a unified entity, a [TRANSLATION]"particular body of norms", and that it is therefore not meant to be inherently plural.[111] In addition, the concept as it is described here implicitly contains the idea that it serves a suppletive function, since the norms contained within that body apply [TRANSLATION]"unless there is an express provision to the contrary".[112] It is that conception of the common law, as a coherent body of law that applies as suppletive law, that the Civil Code of Quebec expressly advances in its preliminary provision,[113] in which the concept is associated with codification.

But a functional definition is not the only possible conception. Going beyond this idea of a coherent body of suppletive norms, we also find definitions that stress the cultural (we might say spiritual) aspects of the common law. From this perspective, what is referred to is less the idea of a coordinated body of norms than the implicit and universal aspects of the content of that body. Professor Brierley defined this meaning of the concept of common law as follows:

It may properly be claimed that a primary sense of the idea de droit commun resides in those principles, variously described as universal, general or super-eminent, that enacted law itself supposes.[114]

As an abstract realm that incorporates [TRANSLATION]"implicit values", "general principles" or "conceptual resources",[115] the concept of common law, understood in that sense, also denotes the idea of universality, but this time because it refers to the concepts or values shared by a group.[116] In addition, its content is less well-defined, and it is mainly the law that derives from it, generally the written law, that will be more coherent or distinct, depending on the forms it takes.[117] From that perspective, the concept has the potential to supplement the positive law in conceptual terms and to produce evolutionary processes between the legal traditions. It has the ability to both provide a foundation for the law and transform it, rather than to serve formally as suppletive law.[118] This phenomenon, the generation of law, is also recognized in the preliminary provision of the Civil Code of Quebec, which, to use the term adopted by Professor Patrick Glenn, is a tacit expression of [TRANSLATION]"openness" to the exterior.[119]

This brings us back to the two hypotheses referred to above, to determine whether, having regard to these definitions, we are ultimately able to identify a federal common law, properly speaking. With regard to the first hypothesis, the possibility that provincial common law has been incorporated into the federal legal system has been argued before the courts. The argument was examined, in particular, in a series of Supreme Court of Canada decisions concerning the jurisdiction of the Federal Court. The leading decision is Quebec North Shore Paper Co. v. Canadian Pacific Ltd.,[120] a case dealing with compliance with contractual obligations in the context of interprovincial works. It was argued that the jurisdiction of the Federal Court under Section 101 of the Constitution Act, 1867 was co-extensive with Canada's legislative jurisdiction, and that until Parliament legislated in relation to the matter, the legislation that applied to claims for relief between subjects (or between the Crown and a subject) was the provincial legislation. By that reasoning, for the purpose of determining the jurisdiction of the Federal Court, the provincial legislation would be considered to be like federal legislation, by means of comprehensive incorporation or referential adoption.[121]

The Supreme Court rejected that argument and concluded that the expression "for the better Administration of the Laws of Canada" in Section 101, on which the Federal Court's jurisdiction is based, carries the requirement that there be "applicable and existing federal law",[122] and does not include any other law that Parliament could validly enact or amend in the exercise of its jurisdiction.[123] The Court therefore rejected the argument that the provisions of the civil law of Quebec that apply to a matter within federal legislative jurisdiction form part of the laws of Canada, because Parliament, in the exercise of that jurisdiction, could amend or repeal them. Rather, the Court concluded that provincial laws could not be amended or repealed by Parliament unless they had first been made laws of Canada by adoption or enactment.

In reaching that conclusion, the Supreme Court rejected the incorporation argument, and also, it seems, with respect to the private law of general application in the provinces, the underlying argument that pre-Confederation private law had been received into the federal legal system: because Parliament cannot retrospectively amend legislation that it did not enact, it cannot be argued that Pre-Confederation private law was formally received at the federal level..[123a] From that perspective, because private law of general application remains in the provincial sphere, we cannot talk about a federal common law, properly speaking; rather, there is a plurality of provincial common laws in the whole of Canadian federal law.[124] Although that conclusion was stated in an analysis of the jurisdiction of the Federal Court, under a specific expression found in the Constitution Act, 1867, we nonetheless think it has consequences for a general definition of federal private law, given precisely the very general nature of the expression the Court analyzed.[125] In any event, absent a specific provision that so provides (which, unless we are mistaken, does not exist), we do not see how it could be concluded, in terms of formal sources, that the provincial common laws in their entirety have been incorporated.[126] As we said earlier, Section 129 of the Constitution Act, 1867 very clearly addresses the reception issues.

On the second hypothesis, that there could be in the federal legal system, as common law understood as "background canvas", a universal body of private law that applies as suppletive law, it is sufficient in this context to examine the premise of the argument. That argument raises, first and foremost, the question of how sources of law are envisioned. While some authors have referred to the idea of a background canvas as a symbolic description of legal systems that operate as suppletive law, what was being described in those cases was a formal, intrinsic component of a legal system that had a positive value overall.[127] In the case of the hypothesis we are examining here, the "background canvas" idea is in fact being used to describe an undefined group of concepts, values or principles that transcend the formal sources of the law, and in the federal context, more specifically, even the provincial sources of private law.[128] Although, at the outside, that fundamental law could be considered to be part of the federal legal system, it nonetheless, in our view, derives from a supra-state conception of the sources of the law.[129] Speculatively, it is of course possible to think of it as suppletive law or common law, in the sense of the ideal to which the expression refers. But that extrinsic cultural component of the federal legal system will still have no positive weight, as long as its content has not been formally recognized by Parliament, or, as the argument we will examine later holds, by a judicial decision with that effect.[130] It therefore cannot be concluded that there is a background canvas representing the fundamental principles of Canadian private law that constitutes a valid federal common law, even though there may be virtual contact and identity between the bodies of provincial law and the federal law at that level of abstraction, and ultimately a unified common law through "convergence" of the traditions.[131]

In short, with the exception of this potential for integration or transformation, which assumes the presence of distinct private law systems within the Canadian federation, we can only look to the parameters established by sections 91, 92, 94 and 129 of the Constitution Act, 1867. In terms of formal sources, we are dealing with a plurality of "common laws" pertaining to provincial private law. These "common laws" apply to federal legislation as provincial law, not as federal law, and moreover, they cannot be assimilated into any potential federal common law. At the outside, we would say that the provinces' private law rules are, by extension or analogy, the "common laws" of federal private law, but we would point out that they function as suppletive law, and that they apply concomitantly with the federal norms, as coherent and distinct bodies of law. As we will see in the next section, provincial law applies not as general law, but simply as suppletive or complementary law.

Our analysis confirms the coexistence of bodies of private law in the Canadian federal scheme, and accordingly the fundamentally plural nature of federal private law. If those bodies of private law are reduced to their attachment to one of the legal traditions, the civil law or the common law, their coexistence can be said to constitute Canadian "bijuralism".[132] However, it must not be forgotten that federal law is organized, first and foremost, around the private law of a province. While, in substantive terms, the mutual influence and interpenetration of the legal traditions at the federal level is certainly an inescapable and positive phenomenon in the evolution of Canadian law,[133] nonetheless, in formal terms, it is necessarily the applicable provincial private law that provides the suppletive sources and thus operates to complete the federal legislation. Federal private law is therefore plurilegal, in so far as it is envisioned as a relationship between federal legislation and the specific private law of the ten provinces.

(b) Complementarity of Provincial Law

In the absence of federal common law, the legislation enacted by Parliament will, as a rule, express federal private law. While these private law enactments are very numerous and sometimes very detailed,[134] they cannot contain all the law. As we said earlier, when we began this analysis, a legal norm is to various degrees characterized by its vagueness. The existence of lacunae in federal private law legislation - the voids, silences, uncertainty or imprecision in that legislation - may be resolved in various ways by interpretation. If the interpreter is unable to discern the content of a private law enactment by referring solely to the text, or to the federal legislative corpus, they will have to refer to the meaning provided by the common law in the province in question. This creates a suppletive relation, in certain circumstances, between federal legislative sources and provincial common law sources. To quote Professors Jean-Maurice Brisson and Andre Morel, the relationship is one of [TRANSLATION]"complementarity" as opposed to "dissociation".[135]

In our analysis of the division of powers, we referred to the complementarity that allows for provincial law to fill the gaps or interstices left by federal legislation.[136] This phenomenon is recognized both by constitutional law experts and by private law experts and legal historians who have analyzed the interaction between the two legal systems.[137] It has also been confirmed by the courts that have the task of applying federal legislation, in particular since it was given formal recognition in the Interpretation Act.[138] What we will therefore do at this stage is not to justify the principle again, but to explain the nature of the interaction in situations where federal legislation applies. For example, does complementarity mean that the province's normative content is assimilated into federal legislation by interpretation? Or does it mean, on the contrary, that the suppletive norm remains confined to the provincial sphere, and limited by the boundaries of the province where it applies when it is applied to supplement federal legislation?

We should first explain what we mean by complementarity. This phenomenon has been described and analyzed by Professors Brisson and Morel; essentially, it means that provincial private law is added to federal legislation, and supplements it in certain situations.[139] Complementarity can occur in a number of ways, and as they demonstrated it often results from the choices made by Parliament. For example, in some cases, Parliament chooses to adopt provincial legislation by formal reference.[140] Brisson and Morel say, however, that complementarity can also be explained by the fundamental principles that underlie federal private law, which essentially correspond to the principles we identified in our discussion of the historical and constitutional background.[141] To use their expression, that results in [TRANSLATION]"implicit dependency" between the federal legislation and provincial law.[142] That dependency means that reference must be made to provincial law in order to apply incomplete or uncertain provisions in federal legislation:

[TRANSLATION] Every time a provision of a federal statute uses a private law concept without defining it or otherwise giving it a particular meaning, and every time a statute fails to completely regulate a particular private law matter or to adopt a formal provision by reference, reference must be made to one of the two legal systems in force to make up for the silence in the statute.[143]

Professors Brisson and Morel highlighted this conceptual dependency, and said that the case law clearly demonstrates that the civil law is applied "spontaneously" where there is no reference to provincial law.[144] In their view, complementarity may arise in practice in two types of situations, and regardless of whether the context is private law or public law:[145] indirectly, where a federal law [TRANSLATION]"is superimposed on a private law relationship" governed by provincial law (for example, in a bankruptcy or an income tax case), or immediately, where a federal private law provision [TRANSLATION]"does not contain all the law needed in order for it to achieve its purpose" and the provincial law must be inserted to supplement it (for example, to identify a limitation period or define the content of a concept).

Regardless of the typology adopted, the basic observation is that federal legislation is not entirely "autonomous";[146] it does not generate all of its own private law (in the etymological sense of the word). As private law that applies by exception, federal legislation must necessarily, at some point, rely on the general law of the provinces. The fact that that law operates as fundamental law in the federal sphere is why Professors Brisson and Morel alluded, by "analogy", to the preliminary provision of the Civil Code and the role the Code plays, as jus commune, in the provincial sphere.[147] However, that similarity is misleading, and when it has not been understood as a mere analogy, it has resulted in misunderstanding in some quarters.[148] Because it is essentially the suppletive function that characterizes a common law [general law or jus commune - Tr.] that is found operating in the interaction between federal legislation and provincial private law. Then, as we noted in concluding that there is no federal common law, it cannot be said that provincial law applies to federal legislation as common law (at the outside, we can say that it "plays a role").[149] First, because those private law rules have a provincial source, and because of that attachment, apply concomitantly with federal legislation, where they are not formally incorporated into it.[150] Second, because it is the nature of common law, jus commune, to be a single ("common") base referent in relation to multiple specific laws derogating from it, rather than the reverse, as in this case, where a plurality of "general laws" appears to exist in relation to a referent that is central (although it applies as the exception), federal legislation.[151]

As a result, it cannot be argued that the common law in force in a province, or the civil law in force in Quebec, applies to federal legislation as common law or jus commune (even as provincial common law). If that were the case, it would have to be assumed that these private law rules are, in that capacity, interchangeable within the federal legal system, and could be applied indiscriminately in any province.[152]That is not the case, however. In these implied dependency situations, those rules are still province-based, even in the federal context, and apply ex proprio vigore. Federal legislation, for its part, is still formally separate from the law "in force" in a province,[153] and is attached to it without being organically integrated with it. Complementarity, therefore, can be summarized as the application of provincial private law as suppletive law in the context of the application of a federal statute.[154] It is a principle of constitutional nature. It implies that there is no common law in Canada outside the provincial sphere, that federal private law is fundamentally divided and plural (polycentric), and that it does not always apply uniformly from one province to another, in aspects that are determined by its suppletive law.[155]

Where there is no formal integration or organic connection between provincial common law and federal legislation, what type of relationship does complementarity assume? Because federal law is not autonomous, in terms of private law, it necessarily involves aspects that connect it with provincial private law, with the methods of doing this being "superimposed" or "incorporated" in the provisions of federal legislation.[156] As Henry L. Molot put it so well, federal law is not an island unto itself, and can be fully understood only by referring to its extrinsic sources:

"Federal law is not "an island unto itself". Some federal enactments are fully comprehensive and self-contained. Others, however, can only be fully understood and comprehended if reference is made to extrinsic legal sources."[157]

When a situation needs to be characterized and the legislation applied, there will be federal private law provisions that require reference to provincial law. Identifying those provisions is a complex intellectual process, and as will be discussed in the next section, the principles of interpretation will inevitably be relied on at this stage. Here, we would note only that the "bridges" between federal legislation and provincial private law are generally established by implicit references incorporated in the text of the legislation.[158] Those references in a sense represent, as it is customary to describe them, "points of contact" between the two legal systems.[159] They play an essential role in that through them, legal systems that are otherwise concomitant "touch on"[160] each other. There is therefore a reason why the government of Canada is dedicating significant efforts to reviewing and correcting those references that are present in various forms in federal legislation.[161] The primary effect of that process, whose objective is to "harmonize" federal legislation, is to remedy the consequences of an historically and constitutionally incorrect drafting method.[162] Its main goal is to provide for federal legislation to be better integrated with Quebec civil law in particular, which has distinct terminology in numerous respects that has not always been reflected properly in enactments.[163]

In short, it is apparent that federal private law is not a perfect sphere in itself, and that in various respects the legislation in which it is set out is a rolling landscape. The textures are its "interface"[164] with the provincial rules, and are composed of a variety of indicators - receptors or connectors of meaning - to which the suppletive law, in a way, connects or attaches.[165] But notwithstanding the quasi-physical representation of this integration, it cannot be considered that the legislative processes that set out the points of contact meet the formal requirements for "incorporation by reference". Such incorporation must derive from the clearly expressed intention of Parliament.[166] In cases of complementarity based on the implicit dependency of the private law systems, we are, rather, dealing with a phenomenon associated with interpretation. Where a provision is uncertain or incomplete, where meaning cannot be determined from the text or the legislative corpus, the interpreter's reasoning and choices will give effect to the reference to the suppletive provincial law.[167]

Making those choices does not involve the degree of certainty found in an incorporation by reference, in the technical sense, particularly when the interpreter is dealing with drafting techniques that favour neutrality.[168] In some situations, an interpreter will in fact use considerable latitude to close the gates and effect "dissociation" from the provincial law.[169] The interpreter's power to impose uniformity, based in part on the principles of interpretation and limited by constitutional considerations, and also reflecting the interpreter's vision of the law, if not of federalism, will be our next subject.

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